Wednesday, April 2nd, 2008...6:30 pm

NO CERT FOR [power chords power chords] GENTRY!!

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That excitement isn’t me; it’s 2/3 the Beastie Boys and 1/3 the blogosphere. Gentry, for those of you not watching employment law, is Gentry v. Superior Court (Circuit City), a California case about employment arbitration. Our very own state Supreme Court said that employee contracts waiving the right to class-action arbitration are sometimes unenforceable (regardless of whether they’re procedurally unconscionable). Trial courts get to decide whether it’s fairer to use class-action arbitration or individual arbitration. Various employers and business interests wanted SCOTUS to take it up, but it didn’t. So that’s the law in California, and because we’re bigger than other states, it may creep into contracts used nationally. Although it has just been pointed out to me that if there’s enough money at stake, probably not. I get the impression (purely anecdotally) that in-house lawyers are extremely bored by writing contracts, but it’s gotta get done.

A post, but certainly not the only post, with background on Gentry is here, at the California Wage Law blog by Walsh & Walsh of Irvine.

This post is a first attempt to get back on the blog horse. More hopefully TK.

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2 Comments

  • Ingen Angiven
    April 2nd, 2008 at 8:08 pm

    Huh.

    Without reading up on the case, that line about unconscionability doesn’t really make sense. I mean, it does make sense in that that’s ALWAYS how the unconscionability doctrine works, so I hope that that wasn’t the crux of the appeal.

    In order for a contract, or a portion of a contract, to be found unconscionable (and hence unenforceable), the person objecting must show that the clause is both procedurally and substantively unconscionable (though a lot of one can overcome less of the other).

    The fact that something was procedurally unconscionable should never be enough, standing alone, to knock down a contract under this doctrine.

  • admin
    April 2nd, 2008 at 9:31 pm

    This is what I get for cribbing off other people’s blog entries. That sentence skips a lot of steps. Mea culpa. Here’s what the California judges wrote in their Gentry decision:

    Another issue posed by this case is whether a provision in an arbitration agreement that an employee can opt out of the agreement within 30 days means that the agreement is not procedurally unconscionable, thereby insulating it from employee claims that the arbitration agreement is substantively unconscionable or unlawfully exculpatory.

    Looks like the employers were trying to argue that there was no procedural unconscionability (because employees could opt out of the agreement), thus there was no unconscionability at all. The “regardless” bit has to do with the fact that the court said it doesn’t matter whether the contract was unconscionable or not, because you can’t waive your statutory rights anyway.

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